As the repacking of the TV band proceeds after the Incentive Auction, the FCC has issued some guidance as to what comes next for TV stations. Obviously, in the near future, TV stations that agreed to surrender their spectrum in the auction will get notice from the FCC to expect their payments from the proceeds collected from the wireless companies that purchased the repackaged surrendered TV spectrum. For stations that are remaining in operation, who last week were required to file construction permit applications for their repacking to the smaller TV band, and their estimates of the expenses that they will incur in the repacking process, the FCC published an article on its blog, here, setting out what is next. The article notes that 25 stations will be filing soon in a new window for stations that either cannot construct on the channels that they were assigned by the FCC, or need expanded facilities to replicate their existing coverage. After that window, there will be another window when the remaining repacked stations can file to maximize their facilities on their new channels. Following those two windows, there will be a window for LPTV stations and TV translators who were displaced by the auction to file for new channels (see our post on that window here).

The other big question is the funds necessary for repacking. The FCC issued a news release last week, here, indicating that the total amount that TV stations and MVPDs estimated that they will need to deal with the repacking is $2,115,328,744.33 – significantly over the $1.75 billion allocated by Congress to reimburse these entities for the repacking. While last week’s FCC blog post notes that the initial estimates will be subject to FCC review and some costs may be disallowed, there is some speculation that Congress will intervene to increase the allowable reimbursement. Commissioner O’Rielly issued a statement, here, urging such action, noting that “no broadcaster or MVPD, nor their viewers or listeners, should be harmed by the repack process.” Continue Reading What’s Next for TV Stations Repacked as a Result of the Incentive Auction? – Recent Flurry of FCC Announcements

The FCC yesterday released an online tutorial for the upcoming windows for filing for FM translators for AM stations. The first window will run from July 26 until 6 pm ET on August 2, where Class C and D AM stations that did not receive a translator in last year’s 250-mile waiver windows can file for a new FM translator to rebroadcast their AM station. We wrote about that window here. The tutorial references various FCC filing guides to assist applicants in filing their applications. The Public Notice announcing the Tutorial also makes clear that, if an applicant has a pending application to acquire an AM station during the window, the proposed assignee can file the application for the new translator, presumably to be granted upon the acquisition of the station (as these translators are tied to the AM on a permanent basis). The current owner of the station and the proposed buyer cannot both file – only one application per station will be permitted. AM stations planning to take advantage of this window should be well into the process of preparing their applications for the window that opens in less than 2 weeks.

Yesterday, the FCC issued a Public Notice declaring the proposed acquisition of the Tribune television stations by Sinclair Broadcast Group a “permit-but-disclose” proceeding. This is not an unusual occurrence in a large broadcast combination where policy issues may be considered. This simply allows the parties to the transaction, and any other party who files comments on the matter, to have discussions with FCC Commissioners and other FCC decision makers about the matter, as long as a description of substance of the discussion is reduced to writing and filed in the docket of the proceeding so that all other participants have notice of what is being said.

This acquisition will, of course, be one where the FCC’s recent decision (summarized here) about the UHF discount will come into play, particularly as there are parties currently appealing that decision (see our article on the appeal here). The FCC’s Public Notice also notes that Sinclair has highlighted situations where the acquisition does not comply with the current FCC local TV ownership rules where divestitures will be required, but notes that Sinclair has stated that it may amend the application should those local rules change while the application is still pending (see our article on proposals to change the local ownership rules pending as part of the reconsideration of last year’s ownership decision). No doubt, with even TV personalities like John Oliver offering commentary on this proceeding, we will be hearing much more about this acquisition before it is completed.

One of the lesser highlighted concerns of the repacking of the TV band into channels 36 and below following the recent incentive auction has been the impact of the repacking on radio stations. As TV stations need to shuffle channels to fit into the smaller TV band as the upper TV channels are repurposed for wireless uses, there will be many situations where there will be tower climbers and other tower work to accomplish the required TV channel changes. While this work is being done, radio stations that share the TV towers may need to reduce power or even cease operations to create a safe environment for the tower climbers. The NAB this week released a list of radio stations that share towers with repacked TV stations and thus could be affected by this upcoming construction. If they have not already done so, radio stations on this list need to coordinate with the local TV station and start planning as to how to best accommodate the repacking work while not unduly disrupting the radio station’s operations during this process that may well strain industry technical resources.

At its April meeting, the FCC voted to allow noncommercial stations not affiliated with NPR or CPB to raise funds for third-party nonprofit organizations, even where such fundraising appeals interrupted normal programming, as long as the licensee did not devote more than 1% of its yearly airtime to such appeals. We wrote here about the decision before it was adopted. The decision adopting the rule change was published in the Federal Register on May 5, 2017, with an effective date of July 5, but for the new rules that need approval from the Office of Management and Budget under the Paperwork Reduction Act. So the change in the rules allowing noncommercial stations to raise funds for third party non-profit organizations is now in effect.

The provisions still under OMB review deal with the on-air disclosures that the FCC required for such third-party fundraising appeals and the public file documentation of such appeals. The on-air disclosures require that the station tell its audience during any fundraising appeal that the money is going to a third-party, not to the station. Whether or not the new rules are in effect, it would seem that any station making an appeal for money for some other nonprofit group would make such a disclosure, for legal and public relations reasons. The public file disclosures under review by the OMB require information about:

• the date, time, and duration of the fundraiser;
• the type of fundraising activity;
• the name of the non-profit organization benefitted by the fundraiser;
• a brief description of the specific cause or project, if any, supported by the fundraiser;
• and, to the extent that the station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised

While the obligation to include this information in the public file is not yet effective, it is likely that at some point this requirement will be approved, so stations ready to take advantage of the new fundraising flexibility should retain this information.

Today, the order eliminating the requirement that broadcasters maintain in a paper public inspection file copies of letters and emails to their stations about station operations becomes effective. While the FCC abolished the requirement back in January, one of the first deregulatory actions of the new Chairman (see our article on that decision here), the decision did not become effective until the publication of that decision in the Federal Register, which occurred today (here). The delay was caused by the review of the decision by the Office of Management and Budget to ensure that it was consistent with the Paperwork Reduction Act – seemingly a self-evident proposition, but one that takes time nevertheless.

For all TV stations and many radio stations that have already converted to the online public file, this effective date will remove the last paper remnant of the public inspection file. For radio stations that have not yet converted to the online public file (smaller clusters in big markets and stations in small markets do not need to convert until March 1 of 2018, see our article here), the paper file will linger on – for some stations who do not upload past political documents (only new political documents need to be uploaded to the online public file), the last remnants of the paper file could linger for two years from the date of the creation of the last political file document that is created before a station’s conversion to the online public file. As the FCC has asked if conversion to the online public file needs to be a pre-condition to taking advantage of any elimination or relaxation of the main studio rule (a proposal on which comments are due on July 3, see our articles here and here), this impending rule change might provide a further incentive to a quick conversion to the online file. In any event, the FCC’s January decision abolishing the obligation to maintain letters from the public in a station’s public file is now, at long last, effective.

July is a big month on the Washington regulatory scene for broadcasters. There are, of course, the routine quarterly regulatory obligations. For all stations, commercial and noncommercial, Quarterly Issues Programs Lists, summarizing the most important issues facing a broadcaster’s community, and the programs that were broadcast in the prior quarter to address those issues, must be in a station’s public file (the online public file for all TV stations and for radio stations that have already converted to the online file) by July 10. These are the only required records documenting a station’s service to its community, so do not forget to complete these reports and to timely place them in your public file.

Children’s Television Reports documenting the educational and informational programing broadcast by TV stations to meet their obligation to program at least three hours a week of such programming for each program stream are due to be filed at the FCC by July 10. Also, TV stations must place into their public file documentation showing that they have met the advertising limits imposed on commercials during children’s programming. Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues Programs and Children’s Television Reports, Comment Dates on Main Studio Rule Elimination and Modernization of Media Regulation, Incentive Auction CP Filing Deadline, Effective Date for Captioning Clips of Live and Near-Live Programming, and Window for FM Translators for AM Stations

The U.S. Supreme Court has invalidated the statutory bar against the federal registration of disparaging trademarks, on the ground that it violates the First Amendment and is unconstitutional. What does this mean for businesses in general, including, in particular, broadcasters and the Washington DC National Football League franchise?

History of the Case

The case involved an application by Simon Tam to register the mark THE SLANTS for an Asian-American band. Mr. Tam selected the name in order to make a statement about racial and cultural issues. The federal Lanham (Trademark) Act states that a trademark shall not be denied registration unless, among other reasons, it:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

Accordingly, the Patent and Trademark Office (PTO) denied the application on the basis that, regardless of Mr. Tam’s intent, the phrase “THE SLANTS” may be disparaging to a substantial percentage of persons of Asian descent. The PTO also stated that it was bound by a 1981 precedent issued by the United States Court of Appeals for the Federal Circuit, holding that the statute was constitutional. Continue Reading “Where seldom is heard a discouraging word?” Supreme Court Allows the Federal Registration of Disparaging Trademarks

It is not every year that the FCC seriously asks broadcasters for suggestions as to what rules it should abolish or modify, but that is exactly what the FCC is doing in its Modernization of Media Regulation proceeding (about which we wrote here and here). Comments due the week after next, on July 5, and broadcasters should accept the invitation and suggest rules that are ripe for repeal or amendment. I recently spoke at the Wisconsin Broadcasters Association’s annual convention and the broadcaster who chaired the association’s Federal legislative committee urged all broadcasters in attendance to register their ideas for reforms. That comment made me realize that many broadcasters may not be taking this invitation seriously.

The number of changes already made in broadcast regulations in the less than 6 months that Chairman Pai has headed the agency (e.g. reinstating the UHF discount, abolishing the requirements for letters from the public in the public file, allowing online recruitment to be the sole means of EEO wide dissemination of job openings, relaxing the location restrictions on FM translators for AM stations, relaxing the limitations on noncommercial fundraising, abolishing the obligation for noncommercial stations to report the social security numbers of their board members, the rescission of FCC enforcement actions for political violations, and the revocation of a policy statement against shared services agreements) demonstrate that this Commission is serious about deregulation. There has perhaps never been as real an opportunity as now to make your voice heard about the broadcast rules that should be relaxed as part of this proceeding. What rules should be examined by the FCC? Continue Reading Modernization of Media Regulation – What Rule Changes Should Broadcasters be Requesting?

While the FCC in April made broadcaster’s compliance with the FCC’s EEO rules easier by allowing the wide dissemination of information about job openings through online sources (see our article here), there still remain significant obligations under those rules (see our article here). The FCC made that clear on Friday, releasing a Public Notice announcing its second EEO audit letter of 2017 for about 80 radio broadcasters, all west of the Mississippi. The FCC’s public notice announcing the commencement of the audit includes the audit letter that was sent to all of the targeted stations.  The list of about 80 radio stations subject to the audit is here. Responses are due July 27, 2017. As employment information for all stations within a named station’s “employment unit” must be provided in response to the audit, the reach of this notice goes beyond the 80 stations named in the audit notices.

The FCC reminds stations that were targeted by the audit to put a copy of the audit letter in their public file. The response, too, must go into the file. For all the TV stations hit by the audit letter, and those radio stations that have already converted to the online public file, that will mean that the audit letter and response go into that FCC-hosted online public file. Continue Reading Almost 80 Radio Stations Hit With New FCC EEO Audit Letter